Privacy, superinjunctions and converging regulation

Confused by the simmering froth of indignation and counter-claim about superinjunctions, Twitter and privacy? Here’s an attempt to extract what’s important.

1. Media regulation is not going away as an issue. This is not because of the sudden eruption of rows about superinjunctions. The fundamental reason for unease about laws and regulators is that they are out of date. The system of media regulation we have in Britain was designed for an analogue age in which each platform (print, radio, TV) was distinct and regulated separately. Digital “convergence”, with words, sound and video all carried by the internet, undermines that. This is very clearly on the mind of Jeremy Hunt, the Culture Secretary, quoted here. Convergence has consequences for privacy, the kinds of issues dealt with under the Press Complaints Commission Code of Conduct and plurality of ownership and control (see here).

2. Alan Rusbridger of The Guardian, giving the Sampson lecture this week, defended the “mixed economy” of British media regulation, which varies from tight regulation (such as for the BBC) to a “wild west” free for all in the printed press, whose self-regulation system is certainly not onerous. Rusbridger argues that this mixture both establishes a visible “gold standard” for good practice while allowing risk-taking  and controversial journalism at the same time. He was asked whether this view was tenable in an era in which print publishers were becoming broadcasters on the web, established broadcasters were becoming magazine publishers and barriers between technologies were vanishing.

3. If we look hard enough there are many issues to wrestle with in the legal framework for the news media. It’s plausible and logical to argue that they are all connected. But this approach risks making the task of improving things look impossibly large. I’d argue that privacy is the issue on which to focus: it lies at the heart of the concerns about super-injunctions, phone-hacking and the idea of self-regulation. I’ve argued elsewhere (£) that new legislation may be closer than many journalists like to think and that editors had better stake out their positions soon.

4. Above all, editors need to establish whether they believe that news media can use a “public interest” defence. A number of prominent papers (principally the Daily Mail and The Sun and their respective publishers) dislike the argument moving towards this ground, because in the end it doesn’t suit them. But it is in that zone – what can and should be justified by an appeal to a wider public interest justification? – that the debate belongs.

5. However disputed and elusive the idea of public interest may be, discussion over limits to intrusion on privacy will make progress if public interest is the focus. Then the makers of the debate can argue the merits of specific measures. For an example see here (£).

6. That in turn leads on to to the enforcement of any rules. Alan Rusbridger, although he has often been critical of the PCC, came down this week against any form of statutory regulation and argued for a revamped PCC. The other options available for reworking the law of privacy are outlined in this post by Hugh Tomlinson QC. This is the territory on which this argument needs to be fought.


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1 comment

  1. This is excellent and very helpful. I would agree with your outline of the issue. However, I just can’t see how, in practice, a privacy law works in the Internet age.
    You can certainly regulate mainstream media and that is important and may cover most of the public sphere. However, I can’t see how you can put the web genie back into the bottle – or even whether you should.
    There is another approach – and I am not saying it is the right one – that contemplates a media universe with much less regulation. If the Internet is to stay open, then that seems the logical outcome.